04/05/2008 09:00 AM Senate JUDICIARY

        HB 400-MITIGATING FACTOR: CARE FOR DRUG OVERDOSE                                                                    
                                                                                                                                
CHAIR FRENCH announced the consideration of HB 400.                                                                             
                                                                                                                                
10:04:36 AM                                                                                                                   
AURORA HAUKE,  Staff to Representative Beth  Kerttula, sponsor of                                                               
HB 400, reported  that each year about 85 Alaskans  die from drug                                                               
overdoses, which  is well  above the  national average.  A recent                                                               
interview of drug users in New  York indicated that over half had                                                               
witnessed a drug  overdose, and that more than 30  percent of the                                                               
witnessed  overdoses  went without  a  call  for help.  The  most                                                               
commonly  cited  reason  for non-reporting  was  fear  of  police                                                               
response.  HB 400  encourages people  to call  911 by  creating a                                                               
mitigating factor  for drug  charges when a  person is  a witness                                                               
and  is seeking  medical  assistance for  another  person who  is                                                               
experiencing a drug overdose.                                                                                                   
                                                                                                                                
MS. HAUKE noted  the written testimony from Angela  Hall who lost                                                               
her daughter to  a drug overdose. The adults  who participated in                                                               
the illegal drug use and  witnessed the overdose didn't call 911.                                                               
It was only when her children came  home that a call for help was                                                               
made. It was too late for her,  but it's not too late for others,                                                               
she said.                                                                                                                       
                                                                                                                                
10:05:43 AM                                                                                                                   
CHAIR FRENCH directed  attention to page 3, line 19,  and said he                                                               
assumes  that  AS 11.71  refers  only  to  drug offenses  so  the                                                               
mitigating  factor  would only  relate  to  the drug  charge.  If                                                               
someone makes a  call for help about a drug  overdose that occurs                                                               
during or  as a result  of an  assault, murder, rape,  or robbery                                                               
there  would  be  no  mitigation in  sentencing  on  those  other                                                               
charges.                                                                                                                        
                                                                                                                                
MS. HAUKE said that's correct.                                                                                                  
                                                                                                                                
CHAIR FRENCH asked her to describe how a mitigater works.                                                                       
                                                                                                                                
MS. HAUKE relayed that AS  12.55.155(a) sets out how a mitigating                                                               
factor  works  and  the  court  determines  whether  there  is  a                                                               
mitigating  factor  on   two  levels.  If  the   low-end  of  the                                                               
presumptive  range  is  0-4  years,  the  judge  can  reduce  the                                                               
sentence to zero, and if the  low-end of the presumptive range is                                                               
over 4  years, the  judge may  decide to  reduce the  sentence by                                                               
half.                                                                                                                           
                                                                                                                                
CHAIR  FRENCH summarized  that  this bill  grants  the judge  the                                                               
opportunity  to reduce  a sentence  to one  half the  presumptive                                                               
sentence.                                                                                                                       
                                                                                                                                
MS. HAUKE said  that's correct, and the judge  may decide there's                                                               
a  mitigating factor  and decide  not to  reduce the  sentence as                                                               
well.                                                                                                                           
                                                                                                                                
CHAIR FRENCH added  that the judge may decide  that the defendant                                                               
doesn't  get the  effect of  the mitigater  because of  other bad                                                               
behavior that occurred during the course of the incident.                                                                       
                                                                                                                                
10:08:16 AM                                                                                                                   
SENATOR THERRIAULT  asked if  the mitigater  would apply  to just                                                               
the person who possesses the drug or to the drug pusher as well.                                                                
                                                                                                                                
CHAIR  FRENCH said  his understanding  is it  would apply  to any                                                               
drug offense.                                                                                                                   
                                                                                                                                
MS. HAUKE  agreed; the statute  governing misconduct  involving a                                                               
controlled substance  makes it  difficult to  separate possession                                                               
and distribution as the severity of the drug increases.                                                                         
                                                                                                                                
SENATOR McGUIRE added that the severity  of the drug is higher so                                                               
the sentence that would be  mitigated would be higher. She agreed                                                               
that the judge has the discretion  to look at the totality of the                                                               
circumstances and decide  not to consider the  mitigater. But the                                                               
stronger message  is that  you want  people to  take the  step to                                                               
help save a person's life, she said.                                                                                            
                                                                                                                                
CHAIR  FRENCH said  you  can imagine  an  array of  circumstances                                                               
where everyone would  think that someone did the  right thing and                                                               
deserves a  break. There  are also a  lot of  circumstances where                                                               
you'd say tough luck. The  authority is appropriately turned over                                                               
to the judge to  make the decision because he or  she has all the                                                               
facts and testimony right there.  "And we hope we're putting good                                                               
judges on  the bench and that  they all come to  good decisions,"                                                               
he said.                                                                                                                        
                                                                                                                                
CHAIR FRENCH found no further testimony and asked for a motion.                                                                 
                                                                                                                                
10:10:44 AM                                                                                                                   
SENATOR McGUIRE  motioned to  report HB  400 and  attached fiscal                                                               
note(s) from committee with individual recommendations.                                                                         
                                                                                                                                
CHAIR FRENCH  announced that without  objection, HB 400  is moved                                                               
from the Senate Judiciary Committee.